The Sale of Human Organs

Organ sale—for example, allowing or encouraging consenting
adults to become living kidney donors in return for money—has
been proposed as a possible solution to the seemingly chronic shortage
of organs for transplantation. Many people however regard this idea
as abhorrent and argue both that the practice would be unethical and
that it should be banned. This entry outlines some of the different
possible kinds of organ sale, briefly states the case in favour, and
then examines the main arguments against.

The expression ‘organ sale’ covers a wide range of
different practices. People most readily associate it with the case
in which one individual (who needs or wants money) sells his or her
kidney to another (who needs a kidney). But there are other
possibilities too. One (in countries where the prior consent of the
deceased is required for cadaveric organ donation) is to pay people
living now for rights over their body after death. Another (in
countries where the consent of relatives is required for cadaveric
organ donation) is to pay relatives for transplant rights over their
recently deceased loved ones' bodies.

Since the kidney is the most commonly transplanted organ and since the
ethics literature on organ sale is mainly about kidney sale from live
donors, that is the practice on which this entry will focus.
‘Organ sale’ as the term is used here does not include the
sale of body products (a category which includes blood, eggs,
hair, and sperm) since this is different in some important respects.
For example, the risk of permanent harm is generally much less in the
case of blood and hair donation; while, the donation of eggs and sperm
raises additional issues relating to the creation and parenting of
additional future people. That said, many of the fundamental issues
are similar and the very same concerns about (for example)
exploitation and consent arise in both cases.

An important preliminary point is that almost all serious advocates of
allowing payment for human organs argue not for an unfettered
‘free market’ but for a regulated one. Radcliffe Richards
et al. (1998, 1950) for example, in their paper “The Case for
Allowing Kidney Sales” say:

It must be stressed that we are not arguing for the positive conclusion
that organ sales must always be acceptable, let alone that there should
be an unfettered market.

While Wilkinson (2003, 132) is typical of organ sale defenders in
wishing to distance himself from today's (largely
‘underground’) organ trade:

… far from being a reason to continue the ban on sale, the
dreadfulness of present practice may be a reason
to discontinue prohibition, so that the organ trade can be
brought ‘overground’ and properly regulated.

Different scholars have different views about the precise scope and
extent of the regulation required, but most support the requirements
that organ sellers give valid consent, are paid a reasonable fee, and
are provided with adequate medical care. Taylor (2005, 110) for
example, says that:

At minimum … a market should require that vendors give their
informed consent to the sale of their kidneys, that they not be
coerced into selling their kidneys by a third party and that they
receive adequate post-operative care.

One noteworthy policy proposal comes from Erin and Harris (1994; 2003)
who suggest that a market in human organs should have the following
features:

It is limited to a particular geopolitical area, such as a state or
the European Union, with only citizens or residents of that area being
allowed to sell or to receive organs.

There is a central public body responsible for making (and funding)
all purchases and for allocating organs fairly in accordance with
clinical criteria. Direct sales are banned.

Prices are set at a reasonably generous level to attract people
voluntarily into the market.

Features (1) and (2) combined are supposed to rule out exploitative
organ trafficking from poorer countries, while the ban on direct sales
and allocation by a central agency ensure that the organs go not to
those most able to pay, but to those in most need. In common with
many other defenders of organ sale, Erin and Harris also propose
building in practical protections for donors and recipients (e.g.,
adequate medical care and thorough health checkups before donation
takes place).

When ethically evaluating organ sale therefore it is best to focus
not on the worst aspects of today's organ trafficking practices
(since that is not what any serious ethicist is defending or proposing)
but rather on what a reasonably well-regulated system of organ sale,
controlled by some combination of the medical profession and state
regulators, would look like. More specifically, it should be
assumed (as it is in what follows) that the doctors, nurses, and
transplant coordinators implementing an organ sale system should at
least adhere to the standards around consent and clinical care
advocated by The Transplantation Society and the World Health
Organisation (leaving aside of course those bodies' opposition to
organ sale itself) (see Other Internet Resources section below).

One final preliminary point is the distinction between questions of
law and public policy, on the one hand, and personal morality on the
other. The debate about organ sale is largely about whether this
should be allowed (by law) and, if so, about what system of
remuneration would be best. However, there is a set of separable
questions about personal morality: about (for example) whether buying
an organ for oneself might be morally problematic even if it should
not be prohibited. Although this distinction is important, and should
be kept in mind throughout, it will not be referred to much in the
following sections. That is because, for the most part, the very same
arguments are used both in attempts to show that organ sale is morally
problematic and in attempts to show that it ought not to be
allowed.

While there are many different variants under this heading, the
basic claim common to all is that autonomous and competent adults have
a strong presumptive right to do as they please with their own bodies
(especially where this is not substantially harmful to third
parties). Therefore, at least in the absence of strong reasons to
do otherwise, people should be allowed to sell parts of their bodies if
they so wish. Whether there are any such strong reasons is of
course a moot point and the main candidate reasons are discussed in
subsequent sections.

Not much directly will be said about these positive arguments for
permitting organ sale since they rely on more fundamental and general
questions in moral and political theory that cannot be tackled within
the confines of a piece on organ sale (within SEP, see the
entries on libertarianism,
privacy and medicine, and
property and ownership). Later sections
will indirectly address these arguments, though, because many of the
objections to sale considered could, if successful, overturn any
defeasible presumption in favour of allowing
‘self-ownership’ to prevail.

This argument is straightforward. Permitting (or encouraging)
organ sale will, it is claimed, save lives by (at least partially)
alleviating the shortage of transplant organs. The saving of
lives is a good end and organ sale is then defensible as a means of
achieving that positive end.

The shortage of transplant organs is a major worldwide public health
problem. According to the US Department of Health and Human Services
Organ Procurement and Transplantation Network, there are approximately
123,000 patients on transplant waiting lists in the US and around
300,000 patients waiting for an organ transplant in China (The
Economist 2014). In the US in 2014, the overall median waiting time
for a kidney transplant was over three and a half years (National
Kidney Foundation 2014). The situation is similar in the UK
(Department of Health 2014). Furthermore, waiting list sizes do not
even fully reflect the actual level of need because doctors are
sometimes reluctant even to list patients who they feel do not stand a
realistic chance of getting an organ in
time. (see Other Internet Resources section
below).

Opposition to the Saving of Lives Argument takes one of two
forms. It may be objected to empirically, with the critic arguing
either that permitting organ sale would be ineffective or that an
alternative system would work better: for example, the ways in which we
approach bereaved relatives could be improved, as could the ways in
which the possibility of (unpaid) living donation is publicized, or
there could be a move to a Mandated Choice or Presumed Consent
system (Hinkley 2005). Alternatively, one might concede
the empirical point that allowing organ sale would be an effective
option, but nonetheless argue that there are sufficiently strong
countervailing (moral or practical) reasons to justify leaving the
prohibition on sale in place. These reasons are the subject of
some later sections.

The Saving of Lives Argument (unless rejected on empirical grounds)
has an important role in placing the onus of proof on the shoulders of
the prohibitionists (those who wish organ sale to be banned). For
given that this prohibition may, in effect, be causing deaths (or at
least preventing the saving of lives) a strong reason to continue with
it will be required.

Many authors have pointed out that there appears to be no
fundamental difference between selling organs and other widely accepted
practices, particularly selling one's own ‘risky
labour’ (work that involves a risk of harm that is the same as or
greater than that involved in organ donation) (Harris 1992;
Brecher 1990, 1994; Wilkinson & Garrard 1996).
Furthermore, common forms of ‘risky labour’ (coal mining,
deep-sea diving, fire fighting, military service in a just war, etc.)
are often more dangerous than selling a kidney, but are
regarded as heroic, rather than condemned; it is seen as just and
proper to reward those who do these things. This difference in
attitude cannot be justified in terms of the good consequences that
‘risky labour’ produces, since the consequences of an organ
sale (often, saving a life) may be just as good or better.
Therefore, it is inconsistent to allow people to be paid for
‘risky labour’ while not allowing them to be paid for their
organs. Savulescu (2003, 138) makes the point as follows:

If we should be allowed to sell our labour, why not sell the means to
that labour? If we should be allowed to risk damaging our body
for pleasure (by smoking or skiing), why not for money which we will
use to realise other goods in life? … or consider the diver. He
takes on a job as a deep sea diver which pays him an extra $30,000
… This loading is paid because the job has higher risks to
his life and health. He takes the job because he likes holidays in
expensive exotic locations.

Similarly, Fabre (2006, 131) argues that:

If someone's interest in raising income by engaging in very risky
activities, such as being a full-time boxer or a building-site worker,
is deemed important enough to confer on her the right to do so
… there is no reason to deny her the right to make parts of her body
available to others in exchange for money, even though she would incur
similar risks in doing so.

Recently, some scholars have questioned whether organ sale and
‘risky labour’ are as similar as they might appear to be.
Malmqvist (2015), for example, argues that it is not clear that kidney
sales and dangerous jobs really do involve comparable risks, all
things considered.

The first, and most straightforward, objection to organ sale is that
it is excessively harmful or dangerous for paid organ donors.
Present-day organ trafficking certainly does involve excessive
and unacceptable levels of harm. But, as mentioned earlier, when
considering the moral permissibility of organ sale, it is advisable to
focus not on the worst case, but rather on the likely level of harm
that would occur within a properly regulated system. Once this is
borne in mind, the harm argument against organ sale appears vulnerable
to a number of objections.

The first (an empirical point) is that the most widely discussed form
of organ sale, kidney sale, is not terribly dangerous if performed in
good conditions. Radcliffe Richards makes the point as follows.

… living organ donation is now so safe that many surgeons
actively recommend it, and they would hardly do that if they expected
a string of dead or damaged donors. They expect that virtually all
donors will make a full recovery to normal health. But the only
obvious difference between paid and unpaid donation is that the vendor
receives something in return which is, to all appearances, a positive
advantage. (Radcliffe Richards 2012, 55).

The UK body NHS Blood and Transplant (NHSBT), for example, informs
us that the risk of postoperative death (to the donor) is about one in
3,000. There is also a small risk (less than 1%) of minor
complications (such as chest, wound, or urine infections). As regards
long-term health risks, NHSBT claims that there is no long-term effect
on the health of the donor or on his/her remaining kidney, and that
donors are at no greater risk of developing kidney failure after
donating than anyone in the general population. So, while there are
some not completely insignificant risks to consider, arguably these
are tolerable compared to both the risks to the prospective recipient
of not receiving the kidney, and the financial benefit to the donor,
provided that the level of reward is set at a suitably high level.

The second objection says that, if our concern is exposing the organ
vendor to risk, then the last thing we should be doing is banning sale
since, as Cameron and Hoffenberg put it:

It is the marginalization of paid organ donation that leads to its
performance in less than ideal circumstances. Paid organ donations need
be no more risky than unpaid.

In other words, the best way of avoiding harm to organ vendors is
not to criminalize and drive sale underground but rather to accept and
regulate it. This style of argument is familiar from other contexts:
notably debates about the legalization of abortion, drugs, and
prostitution.

The third (related) objection is that no matter how dangerous paid
donation is, it need not be any
more dangerous than unpaid donation, since the mere fact of payment
does not add any danger. So if paid donation is wrong because of the
danger to which the donor is subjected, then free donation must also be
wrong on the very same ground. Free donation, though, is not wrong; on
the contrary, it is generally regarded as commendable and heroic.
Therefore, paid donation is not wrong either; or, if it is wrong, it is
wrong because of something other than the danger to which the donor is
subjected (Radcliffe Richards 2012; Wilkinson and Garrard 1996).

It might be argued that what is wrong with organ sale is not danger
per se but rather the fact that someone is being paid to
endanger herself. There are two readings of this. One is as a worry
about consent, the idea being that payment invalidates the
vendor's consent; this will be examined in Section 5. The other
is as a moral principle according to which (independently of concerns
about consent) it is wrong to pay someone to endanger herself. Quite
what the basis for such a principle might be is hard to fathom and it
does seem implausible for reasons given during the earlier discussion
of consistency. Paying people to undertake dangerous and/or
unpleasant work is widespread and, while the world might well be a
better place if people were not required to undertake such tasks, it
would be hard to defend the view that all such arrangements are wrong:
especially in those cases where the work is done voluntarily for fair
pay.

A very different style of argument against organ sale appeals to the
supposed value of altruism. These arguments arise in a number of
different forms, but most of them have the following underlying
structure:

Altruism is a good thing, either intrinsically, or because of its
positive effects (or both).

Permitting and/or practicing organ sale would lessen the amount of
altruism in the world.

Altruism is usually defined as acting out of a concern for the
well-being of others (Nagel 1970; Scott & Seglow
2007). Why might one think that such actions are morally good? Two
main answers are available. The first is that altruism is intrinsically
good and to be contrasted with morally bad characteristics and
motivations, in particular selfishness. The second (which is not
incompatible with the first) says that altruism is good because of its
positive effects, not only its direct effects on the person to whom the
altruism is directed but also its indirect effects on society.
Both answers have considerable plausibility. Many examples of
acting out of disinterested concern for the well-being of others do
seem to be clear-cut cases of moral virtue. And it seems
likely that, all other things being equal, a society with more
altruistic acts would be a better place to live than one with
fewer.

That said, two reservations about the claim that altruism is a good
thing should be noted. First, altruistic acts are not always morally
good. Scott and Seglow (2007, 2) give the following very
pertinent example:

Consider the racist organ donor … who wishes to donate their
organs, but only to those of their own race. They are altruistic
but hardly moral.

Indeed, there seem to be several ways in which an altruistic act might
be wrong. For example:

The
altruist is culpably mistaken about what is really in the interests of
the person s/he is trying to help and ends up harming rather than
helping.

The
altruist benefits the person s/he is trying to help, but her
intervention is wrongfully paternalistic.

The
altruist benefits the person s/he is trying to help, but in so doing
wrongfully harms innocent third parties.

It is not hard to come up with examples in which A
loves B so much that
A is prepared to do bad things to a third party, C,
in order to benefit
A. Such cases range from minor wrongdoing to serious evil. So, as
McLachlan (1998) points out, while many acts of altruism are paradigm
cases of virtue, others are ‘extremely wicked’.

In defence of the value of altruism, it could be argued that even
though many altruistic acts are wrong, all things considered,
nonetheless altruism is always a positive (or
‘right-making’) characteristic. On this view, the
analysis of Scott and Seglow's racist donor example is that,
while his racism is to be condemned, his altruism is not and that, in
the case of racist donation (assuming that this really is wrong, all
things considered), the ‘negative’ racism simply
outweighs the ‘positive’ altruism. If this
view is correct, then the claim that some altruistic acts are wrong
becomes less relevant than it might at first appear, since what matters
is the value of altruism as a positive moral property of
actions, not whether all altruistic acts are good or permissible
all things considered.

… if to a voluntary blood donor system we add the possibility of
selling blood, we have only expanded the individual's range of
alternatives. If he derives satisfaction from giving … he can
still give, and nothing has been done to impair that right
(Arrow 1972, 350).

As the quotation from Arrow (above) suggests, there is a puzzle
about why permitting payment for blood or organs should be thought to
reduce the amount of altruism in the world. For why
couldn't paid and unpaid donation systems peacefully coexist,
with people who want to give freely continuing to do so? Furthermore,
paid donations may even add to the amount of altruism in the world. For
there can be cases in which a person sells an organ not for
‘selfish’ reasons, but in order to pay (for example) for
someone else's medical care (Brecher 1994).

Given this, how exactly will allowing organ sale lead to there being
less altruism in the world? The main answer given is that it would
undermine the practice of free donation. Abouna (1991, 167), for
example, claims that there is:

… considerable evidence to indicate that marketing in human
organs will eventually deprecate and destroy the present willingness of
members of the public to donate their organs out of altruism.

One explanation for this is that when we give people financial
incentives to do some act this undermines or reduce the extent to which
they feel morally obliged to do that act. In this way, financial
incentives ‘crowd out’ altruism (Satz 2010, 193; Sandel 2012).

But is it really true that kidney sale would undermine the practice of
free donation? Well, it could do and ultimately this is a
contested empirical matter about which, as a mere philosopher, one
ought not to claim to have an authoritative view. That said, there are
reasons for scepticism about the claim that kidney sale would
undermine the practice of free donation.

The most important of these is that, at least as far as living
donation is concerned, there is not a very large practice out there to
be undermined. Given the pain and inconvenience involved, free
donation is likely to remain a minority pursuit. Living donation is
admittedly on the rise and, according to the National Kidney
Foundation, almost a third of US kidney transplants in 2014 came from
live donors. However, this is still a 'drop in the ocean' compared to
the 102,000 people on the waiting list and a majority of these live
donors are friends or (more commonly) relatives of the recipient, or
are part of a 'pairing arrangement' (where A's relative donates to B,
and B's relative donates to A). Given such people's strong interest
in saving their friends' or relatives' lives, one would think that
many of them will not be put off by the mere possibility of payment.
And it is notable that fewer than 200 people in the US in the same
year became unrelated anonymous live donors.

Kidneys may then be importantly different from (say) blood. For if
there is no substantial system of free donation in place, then free
donation cannot be undermined by permitting sale. But if an almost
adequate system of free donation does exist (as, in many countries, it
does with blood) then there is a serious possibility of its being
undermined. Thus, the argument which says that what is wrong with sale
is that free donation would be undermined might well work for blood,
even if it does not for kidneys. The same might be true of the
arguments in favour of an altruistic blood system proposed by Titmuss
and others. Perhaps the voluntary blood donation system (and
indeed a voluntary posthumous organ donation system) can be used as a
method of encouraging a valuable culture of altruism, but this is much
less likely to work in the case of living organ donation
(Archard 2002; Campbell 2009; Titmuss 1997).

This difference between kidneys and blood reveals a general structural
difficulty for altruism arguments against sale. For altruism arguments
(insofar as they work at all) work better for those things which are
already freely donated on a large scale, than for those things which
are hardly freely donated at all. Hence, they will tend to be most
successful where, in a sense, they are needed least—because if
there is already widespread free donation, then commercialization will
be unnecessary. This is not a decisive objection, since there are
things which are in short supply in spite of widespread free donation
(blood and sperm might be examples of this). But it is a problem for
this style of argument because there will be a tendency for it to be
least successful where it is most needed (Radcliffe Richards 1996,
2009, 2012; Wilkinson & Moore 1999).

However, even if altruism can survive this first challenge, there is a
second reason to question its importance for the debate about the
permissibility of organ sale. This is the distinction between cases in
which altruism is obligatory (where there is a moral duty to
help others) and those in which altruism is
supererogatory (morally good, but not morally
required—going ‘above and beyond’ one's duty)
(Wilkinson 2003). This distinction is relevant for the following
reason. If (say) altruistic kidney donation were morally obligatory,
then to demand money for one's organ (and, arguably, to accede to such
a demand) would be wrong. But if, on the other hand, altruistic
donation were supererogatory, then to demand money for one's organ
would not be wrong. Rather, it would be merely non-supererogatory:
perhaps not good, but not wrong. So, with this
distinction in place, one might (at least in some cases) accept that
altruistic donations are good whilst also saying that there is nothing
wrong with non-altruistic donation—the point being that
non-altruistic donation, while not as good as altruistic donation, is
nonetheless (morally) permissible. This has implications for the sort
of altruism argument which can be made against organ sale. If it could
be shown that altruistic donation is obligatory then the argument
would be stronger, or at least more straightforward, because it would
follow that selling was wrong (it is wrong to demand money for what
one ought to be giving freely anyway). But if all that could be shown
was that altruistic donation is good, then it would not follow from
this, or at least it would not follow directly, that selling is
wrong. For it might be merely non-supererogatory (Wilkinson &
Garrard 1996).

This may be one area then where the differences between different
possible organ sale systems are relevant. For it is not wildly
implausible to posit the existence of a duty to donate one's
organs for posthumous transplantation. Indeed, this view is not
confined to utilitarian bioethicists, with even the Church of England
stating in 2007 that (posthumous) organ donation is a Christian
duty (BBC News Online 2007). Thus there may well be a valid
altruism argument against a system in which people sell rights to their
body after death: the argument being that they should donate them
anyway without expecting payment. This style of argument looks
less promising, though, when looking at non-directed living kidney
donation (to strangers). Here, I suspect most of us want to say
that becoming such a donor is heroic and supererogatory, not a moral
obligation, and so the altruism argument does not engage. Another
interesting example is blood (from living donors). In many
countries, there is a widespread view that people ought to do this
freely and (if this view is correct) this could underpin an altruism
argument against paying for blood: the claim being that people ought
not to be paid for that which they have an obligation freely to
give.

Monetary incentives, it is sometimes argued, make valid consent
difficult, impossible, or problematic (Radcliffe Richards
2010, 2012). Some of the main arguments offered for this view are that—

Financial incentives encourage people to do things that they would
not otherwise do.

Financial incentives encourage people to do things that are likely
to be harmful to them and which go against their ‘better
judgement’.

Financial incentives can make people's actions, consents, and
decisions less autonomous or less voluntary (Wilkinson 2005).

(a) will not work. For the fact that payments encourage people
to do things that they otherwise would not does not, in and of itself,
invalidate consent. If it did, consent problems would be endemic
and occur every time someone was encouraged by payment to go to work
for wages or to surrender property for a price. So although some people
would only provide organs because of the money, this fact alone would
not invalidate consent.

(b) is more plausible. Or at least it is plausible to suppose
that we ought not to encourage donors to subject themselves to more
than a certain level of danger. But the fundamental problem with
this would be not payment or consent, but rather the fact that they are
exposed to too much danger. So, provided that we have an adequate
way of controlling and regulating risk to organ sellers this particular
worry about payment ought not to arise.

This is supported by two additional considerations.

First, as mentioned earlier, the amount of danger remains the same
regardless of whether or not payment takes place. So if someone
objects to paying donors on the grounds that payment will encourage
excessive risk-taking, s/he ought to object to donation itself
(including free donation) not just the payment. Imagine someone
who objects to paying astronauts on the grounds that it encourages them
to do something excessively dangerous. Surely we should say to
her that, if the objection is danger, s/he should object to space
travel in general, not (just) to paid space
travel. Much the same goes for paying organ donors. If the
worry is danger, we should object to dangerous donation of all kinds,
not just the paid variety.

Second, it is not clear that monetary incentives make people act
against their better interests or judgement. Indeed, this is a
rather surprising view to take since people trade off monetary gains
and losses against other factors on a daily basis; commerce and work
require us to do this all the time. So if an adequately informed
and competent person decides, after deliberation, that it is worth
subjecting herself to a given risk in return for $10,000 then we should
not just assume that s/he is acting against her better judgement since,
for all we know, the $10,000 is more valuable to her than avoiding the
risk (Wilkinson 2005).

Finally, there is (c): the idea that financial incentives, when
allowed to operate in certain conditions, ‘pressurise’
people in ways which are harmful and/or which render their decisions
not truly voluntary. Rippon (2014, 148), for example, tells us that:

… because people in poverty often find themselves either
indebted or in need of cash to meet their own basic needs and those of
their families, they would predictably find themselves faced with
social or legal pressure to pay the bills by selling their organs, if
selling organs were permitted. So we would harm people in poverty by
introducing a legal market that would subject them to such
pressures.

It is difficult, he argues:

… to see how regulation could prevent the kind of pressure in
question, while still maintaining the organ supply. Suppose that a
high minimum price for organs was set. This would prevent one sort of
exploitation ... as everyone who sold an organ would be substantially
compensated for it. However, this would do nothing to address the
problem that some might sell their organs out of economic desperation,
rather than out of a choice made free from external pressure.

The underlying argument here is that certain sorts of payment, or
payment in certain circumstances, exert undue influence on a person's
decision (Nuffield Council on Bioethics 2002). Accusations of undue
inducement almost always occur in one of two different contexts. The
first is where the ‘victim’ of the inducement is in
desperate need of money; the second is where the ‘victim’
is not desperate, but is offered such a huge amount of money to
do X that doing X becomes almost irresistible.
Wilkinson terms these ‘desperate offeree’ cases and
‘enormous offer’ cases. One notable thing that these have
in common is that there is a huge gap between the offeree's
welfare-level if s/he does not accept the offer, and her welfare-level
if s/he does accept (Wilkinson 2003).

Is valid consent possible in these cases? In both scenarios it
may be terrifically hard to decline. However this does not mean
that valid consent to the offer is impossible. Radcliffe Richards
(2010, 291) makes the point as follows:

It does not normally occur to us that people coerced by circumstances
into doing things they would not otherwise do should have their consent
regarded as invalid. If you have cancer, with the choice between
risking its unchecked progression and putting up with pretty nasty
treatments, nobody would think of arguing that the narrow range of
options made your consent to treatment invalid.

So even if we grant that the recipients of enormous offers and
desperate offerees will find it hard to refuse, this does not mean that
they cannot validly consent. This must be so. Otherwise, it would be
impossible for anyone ever to consent validly to lifesaving operations,
not to mention lottery ‘jackpot’ wins or large wage rises;
the mere fact that a proposal is tremendously attractive does not mean
that it cannot be voluntarily accepted.

A slightly different tack is to invoke the idea of coercion by
circumstances, specifically coercion by poverty (Annas 1984; Rippon 2014;
Torcello & Wear 2000). Thus, someone might argue that
even though valid consent from ‘desperate’ people is
possible in principle for the reasons just given, consent will normally
be invalid when the person consenting (e.g., to selling her kidney) is
coerced by poverty. The difference between coercion by poverty
and Radcliffe Richards' cancer example is supposed to be that
whereas the cancer is a morally neutral natural occurrence, the poverty
(at least in some cases) is the result of immoral acts and policies; it
is unjust poverty.

One initial response to the ‘coercion by poverty’ refers
us back to the fact that almost all defenders of organ sale are arguing
not for unfettered international trafficking in transplant organs but
rather for a regulated system of compensation. Within the context
of a regulated system (particularly that advocated by Erin and Harris,
which would be limited to one economic area) there is no reason to
believe that most organ sellers would be desperately poor. Organ
sale may admittedly be more attractive to those with the least money
(for why would someone rich need or want to sell an organ?) but then
much the same can be said of some of the least sought-after and worst
paid agricultural and cleaning jobs, and we do not generally say that
people cannot consent to do these or that these types of employment
should be banned.

But let us allow for the sake of argument that organ vendors would
be very poor. What would follow from this? Poverty (or
threatening poverty) can clearly be a method of coercion. An
obvious example of this is the behaviour of exploitative employers
during times of high unemployment. They can threaten workers with
unemployment—and, hence, poverty—if they do not comply
with their demands (Wilkinson 2003). The position of the
prospective organ buyer though seems rather unlike that of the
exploitative employer and, as Wilkinson and Moore (1999, 378) point
out:

… it is a necessary condition of an offer's being
coercive that the offerer is also responsible for the bad circumstances
of the offeree. For example, if we poison you and then offer to provide
the only available antidote in exchange for your stamp collection, that
is coercive. If you are poisoned in a way for which we are not
responsible, and we make the same offer, that is not coercive …
as long as those making an offer are not responsible for the
circumstances of the potential subjects, their offer is not
coercive.

So in order for prospective organ purchasers to be coercing through
poverty, they must be responsible for the poverty. This need not
mean that they caused the poverty, for people may be responsible for
(improving or preventing) situations that they have not themselves
caused. Hence, another scenario in which the buyers may be
responsible is if they have a positive duty to rescue the prospective
sellers from poverty (and ‘for free’ rather than in
exchange for an organ).

An illuminating analogy is Nozick's Drowning Case
(Nozick 1969, 449). This is a situation in which P (the occupant
of a boat) offers to save Q (who is drowning close to the boat) but
only if Q promises to pay P $10,000 within three days of reaching
shore. One view of this case is that P coerces Q (into paying) if and
only if P has a freestanding duty to save Q without reward.
Whether P does in fact have such a duty is not something we need to
decide upon here and that will depend upon a wide range of facts about
the situation.

Organ vendors then are somewhat like the person in the boat.
If they have an independent duty to alleviate the poverty (i.e., a duty
that does not depend on their getting an organ in return) then to
insist on an organ for the money (when they should have been giving the
money anyway) would be coercive. It would be like charging
someone who would otherwise drown in a situation where there is a duty
freely to rescue.

It is not hard to see how, in principle, this style of coercion
argument could work against organ sale. What is much harder is working
out whether, in most of the cases envisaged, organ buyers have a duty
to alleviate the poverty. The case most often discussed is where the
organ purchaser is a rich Westerner and the vendor is someone
desperately poor from the developing world. The Westerner, it is said,
uses poverty to ‘force’ (coerce) the poor person into
giving up the organ. This may be the case if the Westerner
has a duty to alleviate the prospective organ seller's poverty. But,
as well as difficult general questions about global distributive
justice and the like, there is also the question of whether the
individual in question is directly responsible for alleviating the
other's poverty in these cases. The problem with attributing
responsibility to individual organ purchasers is that the extent to
which they have a positive ‘duty to rescue’ those in dire
poverty may vary enormously depending on their own positions of wealth
and power, and on the extent to which they have already done virtuous
things in an attempt to act on their duties towards the poor. For
example, a Western organ purchaser could have already devoted a large
part of her income and time to charitable projects aimed at the
alleviation of poverty and may herself have relatively little
money—just enough to buy a kidney. Do we really want to say that
such a person has a duty to give her money to the prospective organ
vendor without receiving the kidney (without which she may well die)
in return?

A more promising option is to focus on groups rather than
individuals. One might argue, for example, that the rich nations have a
duty to alleviate poverty in the poor nations. With this (plausible)
assumption in place, it could then be argued that when the rich nations
collectively offer the poor nations money (but only) in return for
organs, this is not really an offer, but rather a threat (a threat to
wrongfully withhold resources if they do not hand over organs).
The rich nations (it is argued) should be giving the money anyway, not
demanding organs in return for it. So what the rich nations are doing
is threatening to withhold resources to which the poor nations have a
moral right, unless the poor nations hand over organs: a seemingly
clear case of coercion.

However, there is a further problem with the ‘coercion by
poverty’ argument—or at least there is a serious problem
with attempting to use it specifically as an argument for the legal
prohibition of organ sale. The problem is that the argument works
equally well against all trade between the rich nations and the poor
ones. For (in simplistic terms) if the rich nations have a duty to give
resources to the poor nations, then any time that the rich nations
insist on trading rather than donating, they will be practicing
coercion—threatening to withhold money that they should be
giving anyway, unless they are provided with goods of one sort or
another. And, as far as the coercion argument is concerned, there is no
reason to single out the trade in organs for special treatment. This
looks like a decisive objection to the coercion argument. Either it
does not work at all, or it works but ‘proves too much’ and
gives us no reason to single out organ sale for condemnation and/or
prohibition.

One possible reply to this is to make a distinction between forms of
global trade which benefit developing world economies and societies
and those which do not. One might then argue that a difference between
the organ trade and (say) the development of hi-tech manufacturing is
that only the latter has the potential to emancipate populations in
the longer-term, whereas buying an organ is merely a ‘resource
grab’ with no positive side-effects on socio-economic
development. Like many of the other arguments discussed in this entry,
much depends on the how the empirical evidence shapes up, but this
response does seem to have some plausibility. However, it could still
be claimed that the international organ trade is no worse (as far as
the quality of consent is concerned) than any other form of
international trade which fails positively to contribute to long-term
development. So perhaps the organ trade is (in this respect) on a par
with logging, or mining, or some basic forms of agriculture.

Perhaps more importantly, though, we must remember that, in any
case, most of these concerns about coercion and poverty can be dealt
with by having a controlled system such as the Erin-Harris
proposal. Of course it is not the case that there is no unfair
poverty within the Western countries that they have in mind. And
so, even under the Erin-Harris system, some account would have to be
taken of the coercion by poverty argument. Perhaps, for example,
we would want to say that, in order for the national organ purchasing
agency not to be coercing-by-poverty it needs to be the case that there
is a minimum wage law and a welfare state that are at least close to
being fair, so that there is no poverty in society for which the state
is morally responsible (either actively or by omission). This is
probably a lot to ask but then we must remember that any actual organ
sale system, along with all other aspects of the economy, is unlikely
to be perfect; and, provided that the organ sale system is not
substantially more exploitative or harmful than most other widely
accepted economic transactions then it would seem arbitrary and unfair
to single it out for particular condemnation or prohibition.

Finally, Radcliffe Richards offers an argument to the effect that
even if there is a consent problem caused by ‘coercion through
poverty’ (a claim about which she is sceptical) this is unlikely
to be a sound basis for prohibiting sale. She asks us to
consider a case in which your daughter is kidnapped. The
kidnappers ask for a ransom in return for your daughter's
life. Clearly, your consent to this arrangement (if forthcoming)
would be invalid because coerced. But—

Suppose the police appeared on the kidnapping scene and prevented you
from signing the [ransom payment] document, perhaps with the outcome
that your child was shot. They might have good public policy
reasons for doing this … but it would be preposterous for them
to claim that they were doing it because the consent you were trying to
give would be invalid … [T]he whole point of declaring
invalidity is to protect the alleged consenter, and here the police
would actually be compounding the wrong done to you by constricting
still further the range of options already constricted by the
kidnapper (Radcliffe Richards 2010, 294).

According to Radcliffe Richards, this is analogous to the situation
in which state action is used to prevent organ sale. As with the
kidnapping, there may be legitimate reasons for such state action (for
example, if the police suspect that the organ purchaser's surgeon
is planning to take several organs and then kill the organ
vendor). However, the invalidity of the seller's consent
(due to poverty) would not in and of itself be a sufficient reason for
state intervention in these circumstances.

Since the metaphorical coercer (poverty) is still present, and the
individual is making the best choice among a still-constricted range of
options, disallowing the choice is like preventing you from meeting the
demands of the kidnapper while he still has your child
(Radcliffe Richards 2010, 294).

So even if there is a quality of consent problem in these
organ sale cases this is unlikely to justify prohibition.

Perhaps the most commonly discussed objection to organ sale is the
claim that it is exploitative (Greasley 2014; Hughes 1998; Lawler
2011, 2014; Wilkinson 2003). Saying what exploitation amounts to is
itself a complex task, however, and I will not say much here about how
it should be defined (see the SEP entry
on exploitation). It is, however,
worth noting that, on one view, defective (or invalid) consent is a
necessary condition for the occurrence of exploitation. Thus
(according to this view) a transaction can only be exploitative if the
putative victim of exploitation is coerced, lacking capacity,
ill-informed, or manipulated (or more generally, if there is some
consent-invalidating factor in play). If this view of the relationship
between consent and exploitation were correct, then the discussion of
exploitation could be ended here; for consent issues were dealt with
in the previous section and the exploitation worry about organ sale
would only be worth taking seriously inasmuch as those consent
arguments discussed above were sound. However, not everyone thinks
that defective consent is required for there to be exploitation and so
there may be some mileage in looking independently at
exploitation.

Similar thoughts apply to the unjust distribution of benefits and
burdens. One view is that a transaction can only count as
exploitative if the relevant benefits and burdens are unfairly
distributed in favour of the exploiter and/or against the
exploited. With this in mind, Harris (1992, 120) usefully
distinguishes between two kinds of exploitation-claim. The
first:

… involves the idea of some disparity in the value of an
exchange of goods and services.

Exploitation concerns of this kind, or at least most of them, can be
taken care of by utilizing some version of the Erin-Harris proposal
(discussed above) since this is designed to ensure that organ
sellers receive just rewards and adequate care, whilst also going a
long way towards ensuring that the distribution of organs to transplant
recipients is fair. And while there may be some practical
obstacles to creating such a system there seem no reasons to suppose
that it is impossible in principle.

There is, however, another sense of ‘exploitation’.
This is:

… the idea of wrongful use and may occur when there are
no financial or commercial dimensions to the transaction. A classic
case here would be where it is claimed that lovers may exploit one
another, that is, use one another in some wrongful way. The most
familiar of such wrongful ways in this context might be where it is
claimed that one partner uses the other or treats the other merely as a
‘sex object’ (1992, 120).

Similarly Goodin (1987, 166) notes that:

Lovers can exploit one another just as surely as can economic
classes. Yet neither party in an affectionate relationship is
functioning in any standard sense as a ‘factor of
production’. Nor, since neither party is creating valuable
objects in any ordinary respect, does it in that context make much
sense to define exploitation in the standard economics-based terms
…

So it looks as if (in Harris's terms) ‘wrongful use’
exploitation is independent of some of the usual concerns about
distributive justice and could persist even within a distributively
fair organ sale system. Exploitation of this second kind is closely
related to a number of other concepts or terms (Wilkinson 2003). One
of these is
objectification: wrongfully treating something (or someone)
that is not a mere object as if it were a mere object. Another is
instrumentalisation, which can be similarly defined as
treating something (or someone) that is not a mere means as if it were
a mere means (Davis 2009). A third is commodification,
treating something (or someone) that is not a mere commodity as if it
were a mere commodity (Sandel 2012; Wilkinson 2000). These ideas are
closely connected to the Kantian idea of dignity (Radin 1996). As
Dillon (2010) puts it, on this view:

To be a person is to have a status and worth that is unlike that of any
other kind of being: it is to be an end in itself with dignity. And the
only response that is appropriate to such a being is respect.

So we have the claim that exploitation,
objectification, instrumentalisation, or commodification could occur within
distributively fair transactions. How might this apply in the
case of organ sale? Specifically, how could these ideas underpin
a sound moral argument against organ sale?

In common with some of the arguments considered earlier, attempts to
use these ideas in an argument against organ sale run up against two
problems. First, there is the similarity of (free) donation and
sale. Let us say that someone objects to organ sale (even where
there is consent and distributive justice) on the grounds that the
seller's body (organ) or the seller herself is objectified or
instrumentalised. This immediately raises the question of why the
very same consideration does not apply to (free) donation, which is
standardly thought to be admirable rather than morally dubious.
For in both cases, a part of the donor's (or vendor's) body
is removed and treated (quite possibly solely) as a means by the
recipient and the transplant team.

Then, second, there is the question of consent. For can we
really make sense of someone being instrumentalised or objectified (in
the relevant normative or pejorative senses of these terms) if what is
done to them is done with valid consent, and especially if what is done
to them would not have been done but for their giving of valid
consent? So one possible principle that we might wish to endorse
here is that:

If A requires and obtains from B valid consent to
do x to B, that is sufficient to guarantee that, in
doing x to B, A does not wrongfully
instrumentalise or objectify B.

Or, to put it another way, as with the other sort of
exploitation discussed above, perhaps even instrumentalisation and
objectification turn out to rely on defective consent: or perhaps
rather on the fact that the putative instrumentaliser (objectifier)
does not care about or require valid consent. Alternatively we
might make this principle slightly more cautious and include a
substantial harm constraint as follows:

If A requires and obtains from B valid consent to
do x to B,
and if doing x to B will not substantially
harm B, that is sufficient to guarantee that, in
doing x to B, A does not wrongfully
instrumentalise or objectify B.

To help think through these principles consider the case of Manuel
Wackenheim. Wackenheim is a (so-called) ‘dwarf’ who (until
a ban was imposed by the local mayor) made a living from being
‘tossed’ by customers in bars and nightclubs. This
‘tossing’ formed part of a dwarf throwing
competition—a sport ‘in which the aim of the competitors
is to fling a dwarf over the furthest distance possible’ (Millns
1996, 375). Wackenheim appeared keen to pursue his chosen career and
didn't welcome the ban on dwarf throwing, saying ‘this spectacle
is my life; I want to be allowed to do what I want’.

Wackenheim can be regarded both as intrinsically valuable
as a person but also as instrumentally valuable as an object
(specifically as a projectile). That is, there is no reason in
principle why a friend of his could not both respect him as an
‘end’ and recognise the fact that his body is formed in a
way which makes it instrumentally valuable to ‘dwarf
throwers’. But could Wackenheim's friend actually use
him as a projectile, whilst at the same time respecting the fact
that he is a person or (in Kantian terms) an end-in-himself? It
is the overall context of the relationship, along with other structural
features of the situation, which determine whether he is appropriately
respected. Surely this must be right, for it would be extraordinarily
hard to argue plausibly that it is impossible, in all contexts, to use
Wackenheim as a projectile whilst at the same time respecting his
personhood. For what if he enjoys being thrown, gets paid for it, and
freely and knowingly consents to it? If for these reasons—i.e.,
because I want to ensure that he derives pleasure and money, and am
certain that it is what he really wants etc.—I throw him, then
there seems no basis whatsoever for saying that I am failing to respect
his personhood. For in such a case, I am (let us assume) deliberately
giving him what he wants (and wants in a free, informed and otherwise
autonomous way) and deliberately benefiting him. How can this be a
failure to recognise his status as an ‘end’?

It is difficult to see how it could be. Although we should add two
caveats. First, this doesn't rule out the existence of other
separate moral objections to ‘dwarf throwing’. Second,
there certainly are contexts in which this practice would constitute
wrongful instrumentalisation. These may include cases in which the
people thrown are substantially harmed and cases in which they do not
consent or in which their consent is invalid. Indeed, this is the main
point. What does all the ethical work here is context: in particular
issues relating to the existence and quality of the
‘dwarf's’ consent—and perhaps also those
relating to harm and welfare.

Much the same goes for organ sale, or indeed (unpaid) organ
donation. When we look at a person with a view to using her
organs for transplantation we are of course viewing at least the organ,
or possibly even the person, as a means to an end, and as a useful
object. But this is not inconsistent with also respecting the
person's dignity and viewing her as an end-in-herself provided
that we take seriously the person's rational agency by requiring
her valid consent for the organ removal and by ensuring that any risk
of harm is minimized and reasonable. The particular issues for
organ sale (as opposed to free donation) then turn out to be those
discussed at length in previous sections. Perhaps there is an
increased risk that consent will be flawed in sale cases; if organ
removal proceeded without proper consent then that could be a failure
to respect the person. And perhaps there is an increased risk
that harm will occur in sale cases; if so (and if the risk goes above a
certain level) then perhaps this also would constitute a failure to
respect the person. Thus the appeal to dignity,
instrumentalisation, and objectification would seem merely to amplify
some of the concerns aired previously about consent and
harm.